Yesterday, the Canadian HIV/AIDS Legal Network issued a press statement on the case, available here.
The reasons for judgment in the case (R. v. J.A.T., 2010 BCSC 766) were made public on June 2nd.
Today, aidsmap.com published a news story that I wrote last night highlighting the most salient points. Read the full story here
The case before the courts in Vancouver, British Columbia hinged on how many times an HIV-positive gay man’s boyfriend had insertive, unprotected anal sex with him, and whether the risk of him acquiring HIV was ‘significant’.
Both sides accepted that the accused had failed to disclose his status, although there had been several discussions around HIV-related risk and an agreement to practise safer sex from the start of the relationship. The accused testified that he had been diagnosed HIV-positive two weeks prior to meeting the complainant and hadn’t been ready to disclose his status at that point.
“I was still dealing with social stigma, personal prejudice; I was mentally a mess,” he told the court.
The prosecution’s expert witness, Dr Richard Matthias, testified that the per-act risk of HIV transmission for the insertive partner was similar for both unprotected anal and vaginal intercourse and estimated the risk to be 0.04%, or 4 in 10,000.
Justice Lauri Ann Fenlon ruled that unprotected sex took place three times, and that the cumulative risk – 12 in 10,000 – did not reach “the standard of significant risk of serious bodily harm that must be met to turn what would otherwise be a consensual act into aggravated sexual assault.”
An equally important part of Justice Fenlon’s decision was that she found the harm of HIV infection to be less than it was perceived to be in 1998.
“It’s no longer the case that people infected with HIV will develop AIDS and die prematurely,” she said. “HIV, while still a deadly virus, can generally be treated and held in check.”
This is relevant, explains the Canadian HIV/AIDS Legal Network, which worked closely with defence counsel Jason Gratl, and provided expert testimony at trial, “because, as the severity of the possible harm decreases, the higher the risk of harm must be in order to warrant criminal prosecution.”
In a groundbreaking ruling for Canada, Justice Lauri Ann Fenlon today ruled that the risk to the insertive partner during anal sex without a condom is not ‘significant’ enough to be considered either aggravated sexual assault nor sexual assault in the absense of disclosure.
Her ruling, reported in Vancouver’s daily paper, The Province, and Canada’s gay paper, Xtra, was based on expert evidence that the per-act risk of acquiring HIV via insertive anal sex was 4 in 10,000. Of interest, the defendant had been recently diagnosed (within the previous six months) and was not on treatment but the expert witnesses’ testimony did not draw attention to the possibility of a higher risk due to higher viral load during early infection.
Full details of each day of the court case have been painstainkingly reported in a blog by Nathaniel Christopher on Xtra.ca. This report of the expert witness statement is below
An expert witness said an HIV-positive man on trial for aggravated sexual assault had a 0.04 percent chance of infecting his partner every time they had sex. Dr Richard Mathias told the court he believed HIV transmission rates in anal intercourse are comparable to those in vaginal intercourse. He explained that a penetrative partner in anal sex is at risk of contracting HIV through anal fluid, which can travel up their urethra. He mentioned that in the case of uncircumcised men the risk is even higher as the fluids can infect the insertive partner through the tissue beneath the foreskin.
Crown counsel Brendan McCabe asked Mathias if he was aware of any individual incidents in the gay community of the virus going from an HIV-positive receptive partner to a negative partner. “No,” said Mathias, who has worked in public health for 35 years and conducted research on HIV and AIDS in the early days of the disease. He explained that the risk in the case of the accused would be 4 in 10,000 per act but that number would multiply with each encounter.
McCabe suggested that if the accused and complainant had had five unprotected encounters then the risk would be 20 in 10,000. Mathias said the risk is comparable to protected sex between an HIV-negative bottom and an HIV-positive top.
The complainant testified that he had engaged in insertive anal sex a total of five times with his former partner; the defendant testified that this happened only once, and that he had thought his partner was wearing a condom at the time. Justie Fenlon ruled that unprotected anal sex had taken place three times, but that a 12 in 10,000 risk was not significant enough to be considered a criminal act. Transmission did not occur.
I have concluded that the Crown has failed to prove that the risk of HIV transmission here — 12 in 10,000 sexual encounters or 0.12 percent — meets the standard of significant risk of serious bodily harm that must be met to turn what would otherwise be a consensual act into aggravated sexual assault.
This verdict should not be understood to mean that the court condones the behaviour of the accused. He had a moral obligation to disclose his HIV-positive status to his partner so that the complainant could decide whether he wanted to take the risk of engaging in unprotected sexual activity with the accused, no matter how small that risk. But not every unethical act invokes the heavy hand of the criminal law.
A previous posting yesterday, reposting an excellent article from Xtra, highlighted the potential significance of the case. It will be interesting to see what others make of it. More on Monday.